MARION, WAR N. v. COLUMBIA CORRECTIONAL INSTITUTION

Filing 46

ORDER denying 45 Motion to Stay. Signed by District Judge Barbara B. Crabb on 4/5/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------WAR N. MARION, P la i n t i f f , v. C A P T A IN DYLON RADTKE, S U P E R V I S O R JANEL NICHOLS an d LT. KELLER, D efendan ts. -------------------------------------------In an order dated March 24, 2010, I denied plaintiff War N. Marion's motion for recusal. Now plaintiff has filed a document that he calls "Motion to Grant Stay to Resume w ith New Judge." Dkt. #45. In his motion plaintiff argues that, under 28 U.S.C. § 144, this cou rt should have stayed the case immediately after he filed his recusal motion until a new judge could be assigned to it. Plaintiff seems to believe that all motions for recusal under § 144 must be granted, but he is wrong. As the court of appeals has explained, [t]he facts alleged in [plaintiff's] motion (and accompanying affidavits) must be legally sufficient and demonstrate the judge's personal bias or prejudice against a party. A court may only credit facts that are "sufficiently definite and particular to 1 OR DER 0 7 - cv -2 4 3 - b b c

convince a reasonable person that bias exists; simple conclusions, opinions, or rumors are insufficient." The factual allegations must fairly support the charge of bias or im p artiality and must be specific--including definite times, places, persons, and circum stances. And while a court must assume the truth of the factual assertions, it is not bound to accept the movant's conclusions as to the facts' significance. M o r e o ver, "[b]ecause the statute is heavily weighed in favor of recusal, its requ irem ents are to be strictly construed to prevent abuse." H o ffm an v. Caterpillar, Inc., 368 F.3d 709, 717-18 (7th Cir. 2004) (internal citations om itted). As I explained in the March 24 order, plaintiff's only evidence of prejudice is that he disagrees with some of the rulings in this case, which is not enough. Liteky v. United S tates, 510 U.S. 540 (1994). Although I decline to stay the case, I will give plaintiff a short extension of time to resp o nd to defendants' summary judgment motion. Defendants filed that motion shortly after I granted plaintiff's counsel's motion for leave to withdraw. Because plaintiff is now rep resen tin g himself, he may need more time. However, I advise plaintiff to focus on prep aring his summary judgment response rather than continuing to file various documents expressing his belief about the unfairness of the proceedings. Some of these documents are no t even motions but simply "responses" to orders. E.g., dkt. ##24 and 44. These filings serve no purpose but to distract plaintiff from the substance of his case. If plaintiff believes that any particular ruling is incorrect, he may appeal that decision once the proceedings in this court are finished.

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OR DER IT IS ORDERED that plaintiff War N. Marion's "Motion to Grant Stay to Resume w ith New Judge," dkt. #45, is DENIED. Plaintiff may have until May 3, 2010, to file a resp onse to defendants' motion for summary judgment. Defendants may have until May 13, 2010 to file a reply. E n tered this 5t h day of April, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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